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The opportunity to commence an arbitration without observing a waiting clause is not a distinct right; it concerns the exercise of an existing right to arbitrate and thus is within the scope of an MFN clause

Jurisdictional clauses in contracts providing for domestic court proceedings between the host state and a domestic company are of no relevance for the jurisdiction of a treaty-based tribunal in an arbitration commenced by the foreign shareholder of the domestic company

IITs must be interpreted using the rules of interpretation laid down in the VCLT

International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Rules of Interpretation > Interpretation Rules of the Vienna Convention on the Law of Treaties (VCLT) as Reflecting Customary International Law

Vienna Convention on the Law of Treaties > Article 31 - General rule of interpretation > Further Problems > Articles 31 et seq. Reflect Customary International Law

If a dispute settlement clause requires a claim's submission to national courts only on a party's request, it may be argued that such a submission is nevertheless mandatory before commencing the arbitration

While different tribunals should seek to act consistently with one another, there is no doctrine of precedent

Law of Treaties

Rules of Interpretation

Interpretation Rules of the Vienna Convention on the Law of Treaties (VCLT) as Reflecting Customary International Law

IITs must be interpreted using the rules of interpretation laid down in the VCLT

Protection of Investors under IITs

Applicability of IITs

Ratione Materiae – Definition of Investment

The Concept of "Investment"

Shares

Minority shareholdings can constitute investments

Expropriation and Standards of Protection

Most-Favoured-Nation Treatment (MFN)

General Remarks

The invocation of a waiting clause constitutes a treatment within the territory of the host state

An MFN clause does not purport to give investors further rights in addition to those given under the IIT

An MFN clause does not permit an investor to selectively pick provisions from several IITs; the investor has to rely on the whole scheme of one IIT, e.g. a dispute settlement clause

In case investors of a different nationality are granted a choice between litigation and arbitration, a foreign investor without that choice is treated less favourable

Not every activity falls within the scope of an MFN clause

Application to dispute settlement clauses

The opportunity to commence an arbitration without observing a waiting clause is not a distinct right; it concerns the exercise of an existing right to arbitrate and thus is within the scope of an MFN clause

If an IIT provides that "the management [...] of an investment" falls within the scope of an MFN clause, the clause applies to dispute settlement provisions

Dispute Settlement Clauses

Waiting Clauses / Duty to Attempt Settlement Before Arbitration

Character of Waiting Clauses

The opportunity to commence an arbitration without observing a waiting clause is not a distinct right; it concerns the exercise of an existing right to arbitrate and thus is within the scope of an MFN clause

The observance of a waiting clause is a requirement of a claim's admissibility, not a tribunal's jurisdiction

If a dispute settlement clause requires a claim's submission to national courts on a party's request only, the submission is not mandatory without such a request

A party may take the position that the parties are still "in dispute" despite a domestic court's decision

A duty to attempt settlement before domestic courts and an obligation to exhaust local remedies may have different effects

If a dispute settlement clause requires a claim's submission to national courts only on a party's request, it may be argued that such a submission is nevertheless mandatory before commencing the arbitration

Exhaustion of Local Remedies Clauses

A duty to attempt settlement before domestic courts and an obligation to exhaust local remedies may have different effects

Waiver of Rights Under an IIT

Jurisdictional clauses in contracts providing for domestic court proceedings between the host state and a domestic company are of no relevance for the jurisdiction of a treaty-based tribunal in an arbitration commenced by the foreign shareholder of the domestic company

Investment Treaty Arbitration

Distinction Between Jurisdiction and Admissibility

A tribunal has to differentiate between questions of jurisdiction and admissibility

Jurisdiction

Consent by the Parties

The parties to a dispute cannot alter the jurisdiction of an IIT tribunal; the tribunal may still have competence to hear and decide the case, but it would act as an ad hoc tribunal

A state's consent to arbitration is expressed in the IIT

The Tribunal's Rights and Duties

A tribunal has a duty to determine its jurisdiction sua sponte

Further Problems

The risk of double recovery is not relevant when determining a tribunal's jurisdiction

Admissibility

Further Problems

The observance of a waiting clause is a requirement of a claim's admissibility, not a tribunal's jurisdiction

Vienna Convention on the Law of Treaties

Article 31 - General rule of interpretation

Further Problems

Articles 31 et seq. Reflect Customary International Law

IITs must be interpreted using the rules of interpretation laid down in the VCLT

ICSID Convention

Jurisdiction of the Centre (Articles 25-27)

Article 26

A duty to attempt settlement before domestic courts and an obligation to exhaust local remedies may have different effects

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